Borat Fundamentals – by Panda Kroll, Esq. 1. Who is “Borat”?

“Borat” is the namesake character of the mockumentary, “Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan.” He is portrayed by British TV comedian Sacha Baron Cohen, who invented the character for TV. Cohen’s work in the film was recognized with a Golden Globe (“Best Actor in a Comedy or Drama”).1 2. What is the film about and how did it fare? Borat portrays a fictional Kazakh reporter making a documentary about American culture for the fictional Kazakhstan Ministry of Information. Believing the fiction, ordinary Americans are duped into portraying themselves on the film in an unflattering light, candid-camera style. The ad-lib film, which was originally expected to flop, earned $260M at the box office and a 2007 Oscar nomination for “best adapted screenplay.” 3. Who is suing Cohen/Borat and 20th C. Fox and why? Ten plaintiffs who appeared in Borat filed suit, but none survived early dismissal (see chart, infra). Claims generally allege invasion of privacy, unauthorized use of likeness, fraudulent inducement, rescission, emotional distress and pray for injunctive relief (to stop DVD sales). 4. Why did all ten lawsuits fail? Cohen and his producers were successful in asserting two defenses: First, the “consent agreement” signed by many of the plaintiffs included a merger clause that, pursuant to a New York Federal District Court judge, precluded claims for fraud.2 Second, even where no consent was given, both New York and California courts agreed that the film’s themes were of “public interest,” trumping the plaintiffs’ privacy interests. In L.A. Superior Court, plaintiffs paid nearly $100,000 in Anti-SLAPP attorney fees, because they could not support their damages claim. 5. Who are Borat’s targets? Possibly you and I! Cohen has written and will likely star as an ambulance-chasing personal injury lawyer in a new film, “Accidentes.” The protagonist will be a lawyer of Latin descent who transforms from contingency attorney to a hero of the working class, while becoming the enemy of L.A.’s power elite.

In addition to prior TV portrayals of his “Borat” character, Cohen is also known for his wannabe-gangstarapper, “Ali G” and “Bruno” (a flamboyantly gay Austrian fashion reporter who will be the central character in a Borat “sequel” slated for July 2009). Cohen has also been signed to play Sherlock Holmes opposite Will Farrell, and Abbie Hoffman in a film on the Chicago Seven.

The dismissal of one such case has been appealed to the Second Circuit Court of Appeals.

6. What is a SLAPP? California and 25 other states have enacted plaintiff-punishing laws to protect defendants against so-called Strategic Lawsuits Against Public Participation (SLAPPs), in the form of anti-SLAPP statutes, or “special motions to strike.” Originally developed to protect the public from commercial developers and others who sought to squelch public debate, California’s anti-SLAPP statute has evolved to encompass speech in the abstract, and to permit challenges by business entities as well as individuals and organizations. The statute is to be “construed broadly” to include any civil lawsuit in which the alleged injury “arises from” a valid free speech activity, or any written or oral statement made in a public forum or even between private individuals “in connection with an issue of public interest.” Code Civ. Proc. § 425.16. In many SLAPP states, such as New York, motions are limited to a much more narrow class of “public” issues (i.e., the granting or denial of a public permit or application). In California, SLAPP claims have included not only defamation, trade libel, slander of title, invasion of privacy, malicious prosecution, and abuse of process, but also less obvious claims such as consumer remedies, unfair practices, interference with business relationships, trespass, nuisance, and harassment. Recently, online publishers (bloggers, anonymous Internet chat room participants, and ISPs), have been successful in exercising anti-SLAPP rights for the following: • comments posted about a company’s finances • comments posted about public persons and their voluntary companions • comments posted about topics of widespread public interest or debate 7. What is an anti-SLAPP motion? An anti-SLAPP is a “special” motion to strike that furthers the legislative goal of protecting the public from expensive “speech-chilling” litigation. A successful motion permits a defendant to seek dismissal at an early stage (60 days after service of the complaint or cross-complaint). The motion functions like a demurrer on steroids, because it: • precludes amendment of complaint; • stays all discovery, yet shifts burden to P to prove likelihood of success, once D merely makes prima facie case that protected speech is at issue; • requires P to produce admissible evidence at the pleading stage; • permits direct appeal of a denial; and • mandates an award of reasonable attorney fees in favor of successful P, even if D voluntary dismisses challenged claims. A lawyer served with an anti-SLAPP motion shortly after filing a complaint may find him or herself explaining to clients that they risk a mandatory fee award. Plaintiffs additionally face exposure to compensatory and punitive damages, should the defendant be able to prove that the suit was brought “in order to harass or silence.”

8. Why did New York and California trial judges find “protected speech” in Borat? New York Case No. 1: Man Running Away From Borat on Manhattan Street (Held, “bizarre and offensive” is a matter of public interest) The unauthorized commercial use of a person’s name, portrait, picture or voice is precluded by New York’s Civil Rights Law § 51. In Lemerond v. Twentieth Century Fox Film Corp., 2008 U.S. Dist. LEXIS 26947 (S.D.N.Y. March 31, 2008), the plaintiff making a claim under the statute asks in a brief opposing defendants’ Rule 12(b)(6) motion, “are there really no limits on Borat’s ability to pluck otherwise anonymous citizens out of a crowd and subject them to public ridicule for profit in the name of the ‘public interest’?” The challenged scene “shows Borat, with a heavily accented voice, greeting Plaintiff on the corner of 5th Avenue and 57th Street in Manhattan.” “Approaching Plaintiff, Borat extends his hand and says: ‘Hello, nice to meet you. I’m new in town. My name a Borat.’ Before Borat can finish his greeting, however, and without further provocation, Plaintiff begins to run away in apparent terror, screaming ‘Get away!’ and ‘What are you doing?’ The 13-second clip concludes as Borat responds, ‘What is the problem?’ Defendants never obtained consent to use Plaintiff’s image, which appears twice in the movie and once in its trailer advertisement. In the trailer, Plaintiff’s face is scrambled, rendering his likeness ‘blurry’ and indiscernable; his face is not scrambled in the film itself.” The above-described screen is the culmination of a series of clips in which New Yorkers express understandable revulsion and surprise at Borat’s antics, which include washing his over-sized underpants in Central Park, pleasuring himself in front of window mannequins, and apparently evacuating his bowels outside of the Trump building. In her opinion granting dismissal, federal district court Judge Loretta Preska ruled that the film was not a “commercial” use within the statute because of its “newsworthiness,” broadly defined as including “social trends or any subject of public interest.” She also noted, “what is one man’s amusement, teaches another’s doctrine.” Acknowledging that the movie’s brand of humor “appeals to the most childish and vulgar in its viewers,” Judge Preska elaborated upon the “teachings” of Borat: At its core, however, Borat attempts an ironic commentary of ‘modern’ American culture, contrasting the backwardness of its protagonist with the social ills [that] afflict supposedly sophisticated society. The movie challenges its viewers to confront, not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from ‘average’ Americans. Indeed, its message lies in that juxtaposition and the implicit accusation that ‘the time will come when it will disgust you to look in a mirror.’ Such clearly falls within the wide scope of what

New York courts have held to be a matter of public interest. Judge Preska, in her opinion, went so far as invoking the film’s contribution to our philosophical notion of “otherness.” She implicitly answered the plaintiff’s question about the limitations on Borat’s unauthorized use of private persons: So long as the challenged use advances the film’s theme – i.e., that Borat’s behavior is no more “bizarre and offensive” than our own reaction, the use serves a public interest that trumps our privacy and publicity rights. The plaintiff allegedly suffered public ridicule, degradation and humiliation after he was filmed “fleeing in apparent terror, screaming for Mr. Cohen to ‘go away.’ ” The plaintiff, however, did not justify his extreme reaction upon being approached by Borat, and Judge Preska pointedly noted that it was unwarranted (“without further provocation”). Based on this opinion, the odder our reactions to Borat’s provocations, the more the balance of interests weighs against our individual privacy rights and in favor of the rights of media producers to expose us. New York Cases, No. 2: Borat Gets a Driving Lesson/Borat Comes To Dinner In another case before Judge Preska, Michael Psenicska, a high school mathematics teacher and driving school instructor also brought a § 51 claim against Borat and his producers. Unlike Lemerond, Psenicska did not demand injunctive relief to prevent further distribution of the film, or claim humiliation for the use of his image in a largely unscripted scene in which the plaintiff attempts to give Borat a driving lesson, with hilarious—although obnoxious -- results. Instead, he claimed that, based on the film’s profits, the paltry $500 paid to him pursuant to his contract with the defendants was insufficient because he had been “set up.” Psenicska claimed $100,000 in damages. The basis of his lawsuit was that the producers fraudulently induced him to sign the contract after defendants misrepresented to him that he would be participating in a legitimate documentary about “the integration of foreign people into the American way of life.” This case was consolidated with two other cases, both of which involved Alabama etiquette teachers who had agreed to give lessons to Borat, who allegedly was represented as “a Belarus dignitary” needing etiquette and dining skills training. The lessons were allegedly to be filmed for a National Geographic-style educational documentary for Belarus television, the purpose of which was to teach “cultural diversity and to learn about Southern traditional values and Southern-style living.” In exchange for pay, plaintiffs shared their Southern hospitality in a filmed dinner at a plaintiff’s home. As always in the film, a seemingly ordinary event degenerates into a hilariously offensive fiasco, including a scene in which Borat hands the plaintiff a bag of feces. When the plaintiff gently accompanies Borat and his bag to the toilet to instruct him in polite bathroom behavior, Borat suggests that her hostess’ duties include “wiping” him. The plaintiffs not only suffered the alleged humiliation of being tricked into appearing in a Rrated film “celebrating racism, child pornography, sexism,, nudity, anti-Semitism and vulgarity.” By editing in scenes such as one suggesting that the dinner was taking place on a fictional “Secession Drive,” plaintiffs were made to appear Each agreement included a merger clause stating that: “[T]he Participant acknowledges that in entering into [the Agreement], the Participant is not relying upon

any promises or statements made by anyone about the nature of the Film or the identity of any other Participants or persons involved in the Film.” In early September U.S. District Court Judge Loretta A. Preska issued a memorandum and order. Judge Preska granting the defendants’ motion to dismiss the complaints because “each Plaintiff has executed a valid agreement releasing the claims he or she now attempts to litigate.” In Dannan Realty Corp. v. Harris, 5 N.Y.2d 217 (1959), the court held that a party is precluded from alleging the defense of fraudulent inducement when the contract signed includes a disclaimer that no fraudulent statements were relied upon by the signor in entering into the contract. Relying on Dannan, Judge Preska rejected the plaintiffs' claims that the merger clause was too general, and likewise concluded the terms of the contract were not ambiguous. 9. Fgfg 10. fgfg

1 2

Cedeno v. 20th Century Fox (USDC, S. N.Y.) John Doe 3 v. One America Productions (Los Angeles Superior Ct.) John Doe 3 v. One America Productions (Los Angeles Superior Ct.)

Illegal depiction of man in New York subway scene. Plaintiff dismissed case 2/4/08 False portrayal of fraternity brothers as racist and sexist. Judge granted motion to dismiss 2/15/07. Rodeo spectator exposed to ridicule. Judge granted motion to dismiss 6/21/07. Secretly recording of man using restaurant bathroom. Case dismissed. Invasion of privacy of woman at Pentecostal church. Judge denied motion to dismiss 8/22/07; case dismissed 7/29/08. Illegal depiction of man being chased in Manhattan by Borat. Judge granted motion to dismiss 3/31/08. Woman duped into giving Borat an etiquette class. Judge granted motion to dismiss 9/3/08; appeal pending. Driving instructor duped into giving Borat a driving lesson. Judge granted motion to dismiss 9/3/08; notice of appeal filed September 18, 2008. False portrayal of etiquette teacher and her dinner guests as racists. Judge granted motion to dismiss 9/3/08; appeal pending. Duping and exploitation of Romanian villagers. Plaintiffs dismissed case 4/14/08.


*4 John Doe v. 20th C. Fox Film Corp. (Richland County Ct. of Common Pleas, S.C.) 5 Johnston v. One America Productions (USDC, N. Miss.)

*6 Lemerond v. 20th Century Fox Film Corp. (USDC, S. N.Y.) 7 Martin v. Mazer (USDC, S. N.Y.)

*8 Psenicska v. 20th Century Fox (USDC, S. N.Y.) 1:2007cv10972 – is this still pending in 2nd Circuit Court of Appeals? 9 Streit v. 20th Century Fox (USDC, S. N.Y.)

10 Todorache v. 20th Century Fox Film Corp. (USDC, S. N.Y.) Discussion:

USDNY: Lemerond (hereinafter “running man”): P signed no waiver, yet his appearance was used in trailers for the film with blurred face, then without blurring in the actual film. He allegedly “suffered public ridicule, degradation, and humiliation” based on a 13-second scene in which he is filmed “fleeing in apparent terror” from Borat, who had approached plaintiff to say, “Nice to meet you.” Two causes of action: unauthorized commercial exploitation pursuant to New York Civil Rights Law § 51 and quantum meruit/unjust enrichment.

Disposition: 3/31/08 Motion to dismiss granted based on “newsworthiness/public interest” exception to misappropriation claim (and such claim subsumes quantum meruit claim). USDNY: Todorache and Ciorebea self-described Gypsies (Roma) of the Romanian Village of Glod (used in the film to depict Borat’s Kazakhstan home), on behalf of their village, alleged that the film’s depiction of the villagers subjected them to international ridicule as “rapists, abortionists, prostitutes, thieves, racists, bigots, simpletons and/or boors” violated USC section 1983 discrimination under color of law as well as fraud. The villagers demanded an apology and that Borat producers make good on their alleged promises to “help” the villagers and their ethnic group improve their status, above and beyond the approximately $5.00 paid to each participating villager. Disposition: Plaintiffs voluntary dismissed their $30M lawsuit after Judge Preska warned their attorneys that unless they could provide specific claims/evidence that the villagers were misled by Sasha Cohen and 20th Century Fox, the case did not have enough legal merit to be heard by the court.

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